L. Ray Calhoun & Company v. Railroad Salvage & Restoration, Inc.--Appeal from County Court at Law No. 1 of Hays County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 03-08-00198-CV

Case Date: 02/05/2009

Plaintiff: TURTLE HEALTHCARE GROUP, L. L. C. D/B/A FRED'S PHARMACY

Defendant: YOLANDA HIGUERA LINAN AND GODOFREDO LINAN, ET AL.--Appeal from 275th District Court of Hidalgo Coun

Preview:John C. Milner v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-04-00742-CR John C. MILNER, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2002-CR-7927 Honorable Philip A. Kazen, Jr., Judge Presiding PER CURIAM Sitting: Alma L. L pez, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Delivered and Filed: December 15, 2004 DISMISSED Defendant John C. Milner pled nolo contendere to aggravated assault, and was sentenced within the terms of a plea bargain. Defendant timely filed a general notice of appeal. The trial court's Certification of Defendant's Right of Appeal states: "the defendant has waived the right of appeal." The clerk's record contains a written plea bargain and a written waiver of appeal, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by defendant; therefore, the trial court's certification accurately reflects that defendant waived his right to appeal. See Tex. R. App. P. 25.2(a)(2). "In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." Tex. R. App. P. 25.2(a)(2). The clerk's record does not contain a written motion ruled on before trial nor does it indicate the trial court granted defendant permission to appeal. The trial court's certification would have been accurate if it had reflected that this is a plea bargain case and defendant does not have the right to appeal in addition to the statement that defendant has waived his right to appeal. Rule 25.2(d) provides, "The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules." Tex. R. App. P. 25.2(d). Accordingly, on November 23, 2004, this court issued an order stating this appeal would be dismissed pursuant to Rule 25.2(d) unless an amended trial court certification that shows appellant has the right of appeal was made part of the appellate record. See Daniels v. State,110 S.W.3d 174 (Tex. App.--San Antonio 2003, order); Tex. R. App. P. 25.2(d); 37.1.

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Appellant's counsel responded to our order with a letter, stating the trial court refused to grant permission to appeal, and therefore an amended certification would not be filed. Accordingly, this appeal is dismissed. PER CURIAM DO NOT PUBLISH

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